Sober by Act of Parliament

by Fred A. McKenzie

CHAPTER III.

THE PROBLEMS OF REFORM.

Four main problems have to be faced before any adequate scheme of licensing reform can be formulated. They are: (1) compensation; (2) of whom shall the licensing bodies consist? (3) what is to be done with the clubs? (4) shall “tied houses” be permitted?

Compensation.—This has been for many years the main block to reform. Are publicans, when deprived of their licences through no fault of their own, entitled to compensation or not? For long there was considerable doubt as to the legal aspects of the matter. One party argued that as the publican has his licence granted for one year alone, and as the magistrates have power to refuse to renew such a licence, therefore the drink seller has no vested interest in its continuance, nor the slightest claim to compensation if its renewal is refused. On the other hand, it was said that while the justices have nominally the power of refusing the renewal of old licences, it is a strictly limited power that they never put into force except for wrong-doing on the part of the licensees; and that the custom has so long prevailed of regularly renewing the certificates of all publicans who behave properly, that an expectation of renewal has become universal; and that by virtue of custom they have a vested interest, and are entitled to compensation if renewal is refused.

The legal aspects of the matter were finally cleared up in 1891 by the decision of the House of Lords in the well-known case of “Sharp v. Wakefield”. The magistrates of the Kendal division of Westmoreland refused, in September, 1887, to renew the licence of an inn at Kentmere on the grounds of the remoteness of the premises from police supervision, and the character and necessities of the locality. The owner of the house, Susannah Sharp, appealed to the Quarter Sessions, but that body upheld the magistrates. It was resolved by the drink interest to make this case a test one. Their argument was that for the renewal of an existing licence the justices are not entitled to inquire into the character and wants of the neighbourhood, or to refuse a licence on the grounds that there is no longer a necessity for a licensed house there.

The case was taken from court to court, and everywhere the decision of the magistrates was upheld. Finally it came before the House of Lords in January, 1891; and the judgment of their lordships was given in the following March. The five law-lords were unanimously of opinion that justices have the right to refuse the renewal of a licence if the circumstances of the neighbourhood or any other sufficient cause render it desirable. The Legislature, their lordships stated, gave the magistrates an absolute discretion both for granting and renewing licences: and such discretion is to be exercised (to quote the Lord Chancellor) “according to the rules of reason and justice, within the limits to which an honest man, competent to the discharge of his office, ought to confine himself”.

This decision was a serious blow to the owners of licensed premises. It at once and for ever swept away all claims of a legal right to compensation, and showed that vested interests in licences are absolutely nonexistent.

But the question still remains whether, although the publican has no legal claim to compensation, he is not morally entitled (under ordinary circumstances) to some consideration, if suddenly and through no fault of his own he is deprived of what he was for long encouraged to look upon as his right. It is felt by many that it would be a hardship to take from a well-behaved licensed victualler his means of livelihood without some consideration. Whether this sentiment is right or not the writer of this book does not propose to discuss; but it undoubtedly exists, and the temperance party will gain nothing by shutting its eyes to it.

On the one hand we have the claim of prohibitionists that no publican should have a penny from public funds as recompense for dispossession; on the other hand, there is the plea of the “trade” advocates, that he ought to have the full difference between the “trade” value of his house and its value as ordinary premises. The first of these seems rather harsh, and the second is certainly unreasonable. Is there no via media?